Tag: Archived BLOG POSTS – Hull on Estates

11 Jan

“A Diamond is Forever?” – Lost Gifts and the Principle of Ademption

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In keeping with the holiday season which has just ended, many of us can reflect on the gifts we received from family members and friends. Often, the sentimental attachment far exceeds the monetary value of the gift. To this end, a testator may make a specific bequest in her Will indicating that upon her demise, a valuable family heirloom is to be given to a close relative.

Interestingly, the question arises about what happens when the testator dies and the specific bequest is not found among the assets. Based on the principle of ademption, the gift is said to "adeem" or fail. In certain circumstances, however, the testamentary gift will not adeem. For example, ademption does not apply where it can be shown that the gift was intended to confer general economic benefit on the beneficiary. Secondly, the gift may not fail if the testator’s intention was not to revoke the gift if it could not be found.

It is not surprising that the principle of ademption may cause bitter disagreements among once close family members. While this dispute can be resolved through counsel, the reality is that the testator would be appalled to know that her Will led to fragmentation of the family. While most of us do not want to envisage our own mortality, careful succession planning may eliminate family feuds and afford the testator the opportunity to explain her intentions to the rest of the family. A meaningful discussion with family members about succession planning may ultimately prevent protracted litigation.

Thanks and have a great day,

Allan Socken

10 Jan

Hull & Hull LLP Breakfast Series – January 17, 2008

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The administration of an estate encompasses a significant portion of most estate solicitors’ practices. Even if the estate is being competently administered, it is still possible that many remedies which would be useful for the beneficiaries could be overlooked in the process. It is for this reason that even the most seasoned estate practitioner may encounter difficulties.

One issue that comes to mind is what remedies are available to the beneficiaries of an estate when a Will is lost? Is a photocopy of the Will sufficient? What if those with a financial interest in the estate object to the granting of a Certificate of Appointment of Estate Trustee With a Will? Is it possible to compel production of the deceased’s testamentary documents?

To find out more about these and other related issues, please mark your calendar and register for Hull & Hull LLP’s upcoming Estate, Trust and Capacity Law Breakfast Series scheduled for 8:30 a.m. Thursday, January 17, 2008 at the Ontario Bar Association (2nd Floor, 20 Toronto Street, Salon 2 & 3). This program will feature three presentations by our firm’s lawyers on the following topics:

Ian Hull will discuss "Estate Law Remedies – What to watch out for when administering an Estate";
Suzana Popovic-Montag will present "Can I encroach and, if so, how? Trust issues in an estates context"; and
Craig Vander Zee will speak on "Considerations in Negotiating the Removal and/or Replacement of a Trustee."

For more information about the upcoming breakfast series and to obtain a copy of the registration form, please click on https://hullandhull.com/news-events/.

I look forward to seeing you there.

Allan Socken

09 Jan

2007 Clawbies

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The Canadian Law Blog Awards ("Clawbies") promote Canadian legal talent on the internet. You may access the website at http://www.clawbies.ca. Recently, Clawbies issued "awards" for, among other things, the "Best Practitioner Support Blog."

The Clawbies website was created by Steve Matthews, founder and principal of Stem Legal, a company that has helped to bring web visibility to the legal community. Given the ubiquitous impact of the internet in disseminating information that was once only available in print form to the general public, it is no surprise that blogs and podcasts have achieved such great popularity. Of course, these technological advancements now afford the legal community the opportunity to discuss current legal issues on the World Wide Web.

With regard to the outcome of the awards, Garry Wise was awarded the "Best Practitioner Support Blog." According to Clawbies, Mr. Wise blogs on a wide variety of topics and, in particular, has provided useful advice to many sole practitioners. The runners up for this award were David Fraser’s Canadian Privacy Law Blog and our blog, Hull & Hull LLP’s Toronto Estate Law Blog.

Congratulations to Mr. Wise and Mr. Fraser on these "awards"! We are also proud of our recognition, and more importantly, that our blog and podcast series make a valuable contribution to the Canadian legal community.

Thanks and have a great day,

Allan Socken

08 Jan

The Case for Mediation

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I am currently working on my Master of Laws in Alternative Dispute Resolution ("ADR"). When my peers discovered that I practice estate, trust and capacity litigation, they were surprised by my decision to pursue this degree. After all, a litigator is thought to spend the vast majority of time in court. In reality, 99% of all legal disputes are settled outside of court. Indeed, I find mediation to be an effective form of ADR.

The process of mediation is overseen by a non-partisan third party whose authority rests on the consent of the parties. The mediator endeavours to facilitate the development of consensual solutions by the disputing parties and has no independent decision-making powers. Many strategies and techniques are used to encourage the parties to reach a successful agreement. Finally, mediation creates conditions under which parties conclude a successful negotiation.

Mediation can be an especially effective tool in settling estate disputes. Generally, it is far more expeditious and economical in resolving even the most contentious matters. It allows the parties to discuss their conflict in a confidential and private environment. Furthermore, mediation provides the parties with the ability to craft their own solutions, as opposed to an imposed court Order.

The most compelling reason to attempt mediation is because it offers the best opportunity for family members to move beyond the bitterness and resentment and perhaps repair previous relationships.

Thanks and have a great day,

Allan Socken

07 Jan

James Brown’s Legacy

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It was recently reported that five of James Brown’s children have commenced legal proceedings to challenge the validity of the legendary singer’s Will on the basis that his former advisers unduly influenced him to create charitable trusts from which the advisers would profit.

The children were largely excluded from the Will and the vast majority of the money was left in trusts to educate Brown’s grandchildren and to assist needy children. This ensuing Will challenge proceeding affords estate practitioners the opportunity to review their own practices when drafting Wills.

Although it is virtually impossible to eliminate the prospect of a Will challenge, there are steps that can be taken that may enable the estate practitioner to propound the Will. For example, in instances where no provisions have been made for close relatives as beneficiaries, further inquiry may be necessary, together with clear and comprehensive solicitor’s notes.

When drafting Wills, estate practitioners may also wish to ascertain whether the Will the client wants drawn up differs substantially from previous testamentary instruments and if so, why? Only through careful inquiry may a prudent solicitor glean her client’s true testamentary intentions.

While these suggestions by no means form an exhaustive list of all necessary steps to be taken prior to the drafting of the Will, the foregoing does provide helpful pointers that could mean the difference between the Will being successfully propounded or overturned.

Thanks and have a great day,

Allan Socken

04 Jan

2008 Award of Excellence

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Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Brian Schnurr as the recipient.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.

READ MORE

03 Jan

2008 OBA Annual Institute – Trusts & Estates Section

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Estate planning and estate litigation have become more complex because of the dynamic of today’s family and the financial consequences that accompany that dynamic.

This year’s OBA Annual Institute Trusts & Estates program looks at how planning can work or not work (and how litigation may arise), depending on the steps taken by the players involved and especially by those who might end up thwarting it. Topics include the changing dynamic of the family and its effect on the estate, support claims in broken and reconstituted families, administering the family company through a trust or estate or as an attorney, dealing with clients with diminished capacity, estate planning and protection for disabled persons, DNA in estate matters, organ and tissue donation, when charities are part of the plan, income splitting and attribution, the latest on joint assets and secret trusts and other planning for “secret” friends and relations. 

The title of this year’s program is “The Estate Plan: Dynamic or Dynamited?”

As Co-Chair of this year’s program, I can say that this program is a must-attend for estate planners and estate litigators.

The presenters include Jordan Atin, Clare Burns, Barry Corbin, Sheila Crummey, Dana De Sante, Ian Hull, Hilary Laidlaw, Sabina Mexis, Jim O’Brien, Archie Rabinowitz, Brian Schnurr, Liza Sheard, Dr. Michel Silberfeld, Clare Sullivan, Jim Sweetlove, Corina Weigl, Kim Whaley and Susan Woodley.

The program is a full day on Tuesday, February 5, 2008, starting at 9:00 a.m. To register for the program, contact the OBA at (416) 869-1047 or 1-800-668-8900 or email www.oba.org.

I hope to see you there.

Craig

 

02 Jan

LOOKING FORWARD TO 2008

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I hope everyone had a great holiday.

With the close of 2007, we turn and look to the promise of 2008. In looking ahead to 2008
many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2008.

Craig

21 Dec

Happy Holidays

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This is our last blog of 2007!

Thank you for reading our blog posts over the past year. We have enjoyed preparing them. We hope that we have been informative.

As always, if you have any questions, comments or suggestions, please fell free to contact any of us. Your feedback is always appreciated.

We look forward to continuing our posting in the new year, and hope that you will continue reading. Our blog posting returns on January 2, 2008.

On behalf of everyone at Hull and Hull LLP, I would like to wish you a very happy holiday, and a wonderful new year. We hope that you have a safe, restful holiday. Take some time to reflect on the past year, and to resolve for better new year.

Season’s Greetings and Happy New Year.

Paul Trudelle

20 Dec

Interest Not Payable on Insurance Proceeds Until Declaration of Death

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Interest is normally paid on the proceeds of a policy of life insurance thirty days after the insurer receives sufficient evidence of the claim. The requirements are mandated by statute. What happens, however, where the insured “disappears”, and the beneficiary brings an application for a declaration of death? Is interest payable from the date of death (as declared by the court), or from the date of the declaration itself?

This issue was considered by the Court of Appeal of Manitoba in Antonation v. Sylvester, 2007 MBCA 110 (CanLII). There, the “deceased” disappeared on May 29, 1998. In May 2005, the beneficiary under a policy of insurance on the deceased’s life brought an application for a declaration that the deceased was presumed dead because of the passage of seven years from his disappearance. The court granted an Order on July 4, 2005 declaring that the deceased “shall be presumed to have died on May 29, 1998.”

The proceeds of the insurance policy were paid to the beneficiary within 30 days of the date that the court made the declaration: July 4, 2005. However, the beneficiary claimed interest from the date of disappearance (ie. the date of death as declared by the court: May 29, 1998).

The Court below and the Court of Appeal both held that no interest was payable until 30 days after the date upon which the declaration of death was made. This declaration was part of the “sufficient evidence” that the insurer required in order to trigger the obligation to pay under the applicable legislation. Until this declaration was made by the court, there was no obligation on the part of the insurer to make the payment.

The legislation in Ontario is essentially similar to the applicable Manitoba legislation considered by the court. In fact, the Court of Appeal of Manitoba relied on an Ontario Divisional Court case directly on point.

Thank you for reading.

Paul Trudelle

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